Update: Patent office head describes three-track system

SAN JOSE, Calif.  The United States Patent and Trademark Office proposed a new three-track system for patent applications. The initiative is the boldest suggestion yet for dealing with an increasing backlog of applications.

The initiative comes less than a year after David Kappos, a former IBM intellectual property executive, was appointed director of the patent office. The USPTO will hold a public meeting on the proposal July 20 and will take written comments until August 20.

The top track in the USPTO's proposal would essentially make routine existing pilot programs that let applicants pay an extra fee for an expedited application. The second track would be the same as the existing application process. A third track would let an applicant set a delay of up to 30 months before his patent was examined, essentially getting the paperwork on file for a patent the applicant may not see as a high priority.

"This is simply about letting applicants tell us what's most important to them so we can get to that first," said Kappos in a press conference. "If we accomplish that much, this will be a success but we think this can also help reduce pendency," he added.

The goal of the top tier would be a first action on the merits of an application within four months and a final disposition within 12 months after priority status was granted. The USPTO wants industry input about how much the fee should be for an accelerated decision. Kappos told Congress in May the USPTO needs to increase its fees.

The USPTO should complete within two months a study mandated by Congress of the relative time to process patent applications in different technology areas. That may be one tool to determine a sliding scale of fees for different technology areas and different size companies.

Kappos said the Patent Office would like to offer on the accelerated process the same 50 and 75 percent fee discounts it now offers to small and very small companies on some of its existing services. However, it cannot offer those discounts on the proposed accelerated service unless the agency gets fee setting authority, something that has been proposed in draft patent reform legislation now in Congress.

"The fees will certainly be non-trivial--think in terms of shipping a package overnight versus two- or three-day ground service," Kappos said. "When you multiply the cost by hundreds of patents the fee will grow large even for large entities," he said.

Kappos reiterated the Obama Administration's support for the patent reform bills waiting for floor debates in Congress.

I think this is very bad for independent inventors who already cannot compete with deep pocketed corporations. This actually will make it even more expensive for them if they want to protect their innovations with a patent. A patent after legal prep costs about $25k. I can think of many ways to reduce the bottleneck: restrict the length of the disclosures and number of drawings, standardize templates and classifications. Make the filing free and get the fee by taxing the user of the patent. This guarantees revenues for all producers,reviewers and users of patents. Why would anyone want a delay in patent granting?
Note to patent examiner : do not read this if you are reviewing my disclosure :-). Too late for that I guess...

I see one potentially serious issue: if recently submitted "fast track" applications get processed before earlier applications, then there is the potential for earlier prior art to be missed in the review process. While the patent review process has never been a strictly First In / First Out (FIFO) process, this change could make the situation much worse. I'd anticipate the potential for a lot of patent reversals when older applications were processed and revealed that fast tracked patents were actually invalid because of the newly uncovered prior art.

Diffcult one. I guess the principle of giving inventors different options is a good development. On the other hand, I worry about the cost differential which might create a barrier to some innovators. I would like to see the extra cost involved gathered from other sources than the inventor (e.g. a levvy on the proceeds from successful patents, national/international fund).